Rajan and others v. The New India Assurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **MONDAY, THE 22[ND] DAY OF NOVEMBER 2021 / 1ST AGRAHAYANA,** **1943** ## **MACA NO. 893 OF 2013** **AGAINST THE AWARD IN OP(MV)NO.211/2009 OF MOTOR ACCIDENTS** **CLAIMS TRIBUNAL, KOLLAM** ## **NAME AND ADDRESS OF THE APPELLANTS/PETITIONERS :** **1 RAJAN, AGED 68 YEARS, S/O.GANGADHARAN, LEKSHMI VILASAM, CHATHINAMKULAM, CHANDANATHOPPU, KOLLAM.(DIED)** **2 CHANDRIKA, W/O.RAJAN, AGED 60 YEARS,** **LEKSHMI VILASAM, CHATHINAMKULAM, CHANDANATHOPPU, KOLLAM.(DIED)** ***3 LEKHA, D/O. RAJAN, AGED 30 YEARS, LEKSHMI VILASAM, CHATHINAMKULAM, CHANDANATHOPPU, KOLLAM.** ***THE THIRD APPELLANT IS RECORDED AS THE SOLE LEGAL REPRESENTATIVE OF THE DECEASED APPELLANTS 1 AND 2 AS PER ORDER DATED 01/11/2011 IN MEMO DATED 12.07.2021 IN MACA 893/2013.** **BY ADVS. SRI.S.SUNIL NARAYANAN O.D.SIVADAS SRI.SAJJU.S** M.A.C.A.No.893 of 2013 ..2.. ## **NAME AND ADDRESS OF THE RESPONDENTS/RESPONDENTS :** **1 T.VISWANATHAN, THADATHIL HOUSE, KATTIPURAM THRIKKANAPURAM, THAVANUR P.O., PONNANI, MALAPPURAM.** **2 MANI K.K., KUNDUKADU, PARAMBIL HOUSE, THRIKKANAPURAM, THAVANUR P.O., PONNANI, MALAPPURAM.** **3 THE NEW INDIA ASSURANCE, 1ST FLOOR, TARIFF BAZAAR, OPP.TOWN HALL, THIROOR, MALAPPURAM.** **BY ADVS. M.I.JOHNSON T.K.MOIDEEN KUTTY BY SMT.M.HEMALATHA, STANDING COUNSEL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No.893 of 2013 ..3.. ## **M.A.C.A.No.893 of 2013** ## **-------------------------------------------------------** ## **J U D G M E N T** This appeal arises out of the award in OP(MV) No.211 of 2009 dated 14.08.2012 on the file of the Motor Accidents Claims Tribunal, Kollam, at the instance of the petitioners. Respondents herein are respondents before the Tribunal. Appellants 1 and 2, the parents of the deceased Raju, are now no more (during 2018 and 2021 respectively). Now the third appellant, the sister of the deceased Raju who is unmarried, being the only legal heir of the appellants 1 and 2 and dependant of Raju, canvasses increase in the award amount granted by the Tribunal. 2. Heard the learned counsel on both sides. 3. The precise allegation in this case is that on 17.01.2008 at about 2.45 am, when one Raju was travelling M.A.C.A.No.893 of 2013 ..4.. from South to North in a Scorpio car bearing registration No. KL-7 AL/4959, a tourist bus came from the opposite direction, hit against the car and in consequence thereof, he sustained fatal injuries and thereafter, he succumbed to the injuries. Thus, the appellants filed application under Section 166 of the Motor Vehicles Act before the Tribunal alleging negligence against the second respondent, the driver of the tourist bus. Rs.6,00,000/- was claimed as compensation. 4. Though R1 entered appearance, no written statement was filed. R2 was set ex parte by the Tribunal. 5. R3, the insurance company filed written statement and admitted the policy but, liability and quantum were disputed. 6. The Tribunal addressed the issue by marking Exts.A1 to A7 documents on the part of the petitioners. No evidence adduced on the part of the contesting respondents. Finally, the Tribunal granted award to the tune of Rs.3,24,000/-. 7. The learned counsel for the third appellant M.A.C.A.No.893 of 2013 ..5.. would submit that the monthly income fixed by the Tribunal is on lower side in a case, where the appellants canvassed income at the rate of Rs.10,000/- per month claiming that the deceased was a person doing the job of interior decoration. It is submitted by the learned counsel for the appellants further that Ext.A7 certificate issued by the employer to show the said income was not considered by the Tribunal and the Tribunal fixed the income at Rs.7,000/- per month alone. However, monthly income sought to be enhanced. 8. It is submitted by the learned counsel for the insurance company that even following the ratio in [(2011) 13 SCC 236], **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** , only Rs.6,500/- to be fixed as the monthly income and the Tribunal fixed Rs.7,000/though the income certified as per Ext.A7 was not fully considered. The learned counsel opposed increase in monthly income. 9. While allaying the dispute, I have perused M.A.C.A.No.893 of 2013 ..6.. Ext.A7 issued by one Hariharan stating that Raju was worked under him during 1998-2000 and was given Rs.10,000/- per month as income. This is a certificate issued in a plain paper without much details and therefore, the Tribunal rightly negatived the same for want of proof by examining its author. So, I am not also inclined to increase anything more than Rs.7,000/- granted by the Tribunal as monthly income. However, no addition towards future prospects entitled was not given by the Tribunal, following the ratio in [2017 16 SCC 650], **National Insurance Company Ltd. v. Pranay Sethi & Ors.** 10. It is submitted by the learned counsel for the contesting appellant further that the age of the dependents was taken as the determining factor to find the multiplier by the Tribunal and the same is not correct following the ratio in [2010 (2) KLT 802], **Sarla Verma v. Delhi Transport Corporation.** The submission is not opposed in view of the settled proposition as canvassed. Therefore, the multiplier also is modified to '16' instead of '7' taken by the Tribunal. Thus, the M.A.C.A.No.893 of 2013 ..7.. amount would come to Rs.6,500+40%=9,100/-. Therefore, the loss of dependency income is re-calculated as under; 9,100x12x16x1/2=8,73,600/- Out of which, Rs.2,94,000/- was granted by the Tribunal. Rs.8,73,600-Rs.2,94000= **Rs.5,79,600/-** more is granted under the head loss of disability income. 11. The learned counsel for the contesting appellant canvassed increase under the conventional heads also following the ratio in **Pranay Sethi'** s case( _Supra_ ). On perusal of the award, it could be seen that no amount under the head loss of consortium was granted by the Tribunal, though original appellants/petitioners 1 and 2 being parents are entitled to get Rs.40,000/- each under this head. Therefore, **Rs.80,000/-** more is granted under the head loss of consortium. Perusal of the award would go to show that no amount granted under the head loss of estate was granted. Therefore, Rs.15,000/- is granted under the head following the ratio in **Pranay Sethi'** s case. Coming to funeral expenses, only M.A.C.A.No.893 of 2013 ..8.. Rs.10,000/- granted by the Tribunal, though Rs.5,000/- more is entitled. Thus, **Rs.5,000/-** more is granted under this head. Coming to the other heads, the Tribunal granted Rs.10,000/under the head 'loss of love and affection'. Following the ratio in [AIR 2020 SC 3076], **United India Insurance Co.Ltd. v. Satinder Kaur** , Rs.10,000/- under the head is reduced. In the result, this appeal is allowed in part. It is ordered that the appellant is entitled to get enhanced compensation to the tune of Rs.6,54,600/-(Rupees Six Lakh Fifty Four Thousand Six Hundred only) at the rate of 7.5% interest granted by the Tribunal, excluding the amount already granted by the Tribunal, from the date of petition till the date of deposit or realisation excluding the period of 140 days wherein, grant of interest was specifically excluded as per order in C.M.Application No.1 of 2013 (CMAP.No.1115/2013) dated 01.11.2021. It is noticed that for the payment of court fee, Rs.6,00,000/- alone was valued by the contesting appellant and M.A.C.A.No.893 of 2013 ..9.. she is liable to pay court fee for the enhanced compensation to the tune of Rs.3,786/-. Therefore, the insurance company is directed to deposit Rs.3,786/- in addition to the court fee already ordered by the Tribunal by separate cheque in the name of M.A.C.T. The insurance company is directed to deposit the balance amount in the name of the third appellant within two months from today and on deposit, the third appellant can release the same. Sd/- ## **A.BADHARUDEEN, JUDGE** rkj